Lori Drew Update

Before it adjourned yesterday, the jury in the Lori Drew case (the subject of my column today) indicated it had reached unanimous verdicts on three of the four charges against her but was having trouble agreeing on the fourth. Since three of the four charges (PDF) involve using MySpace "without authorization" to obtain information—i.e., visiting MySpace on three different days as part of the "Josh Evans" hoax that apparently drove 13-year-old Megan Meier to suicide—it seems likely those are the three charges on which the jurors have reached a verdict. The fourth charge is that Drew participated in a conspiracy with her 18-year-old employee, Ashley Grills, and her 13-year-old daughter, Sarah, "to access a computer without authorization" and "obtain information from that computer to further a tortious act, namely, intentional infliction of emotional distress." Presumably that's the count the jurors are having trouble with.

But it's hard to see how they could find Drew guilty of unauthorized computer access in furtherance of a tortious act without also concluding that she conspired with others. It's undisputed that Drew, at the very least, knew about the hoax, did nothing to stop it, and in fact occasionally posed as the fictitious 16-year-old Josh Evans herself. The prosecution argued that she encouraged the prank from the beginning and kept it going when the others wanted to stop. And if the jurors have concluded that Drew is not guilty of unauthorized access, why would they struggle with the conspiracy charge, which includes the same intent elements?

One possibility is that jurors have decided Drew is guilty of unauthorized access to obtain information but not "to further a tortious act." That would make those three counts misdemeanors instead of felonies, punishable by up to a year in jail instead of five. And if her goal in obtaining information was not to commit a tort, the conspiracy charge falls apart, at least as it's phrased in the indictment. As I argue in the column, it seems pretty clear that, insofar as Drew sought to obtain information via MySpace, it was not to inflict emotional distress on Megan but to protect Sarah from rumors Megan reportedly was spreading about her.

The jurors resume deliberations today, so we should find out pretty soon whether I'm completely off base. But if they find Drew guilty of unauthorized access at all, even if it's only the misdemeanor version, the threat of criminal liability for Internet users who violate unread terms of use remains. Orin Kerr, the law professor who is serving as a pro bono attorney for Drew, explained the stakes this way in an October interview with Wired News:

If the government succeeds in this case, they can pretty much bring charges against anybody who uses the Internet. And Congress never intended that. This is a case with really important civil liberties stakes for anyone who uses the internet.

For more on the threat posed by broadly interpreted laws against unauthorized computer access, see Kerr's prescient 2003 NYU Law Review article and the Electronic Frontier Foundation's amicus brief (PDF) in the Drew case.